June 19th, 2024
Tune into the Law Frog Radio Show on Kilo 94.3 FM with David McDivitt and Ross Ford. This episode covers several intriguing cases including a ski lift accident, a man suing Apple, and a family whose toilets have not been working correctly for six months in their rental home.
Caller: A man and his 16-year-old daughter were on ski lift in Crested Butte and the daughter could not settle into her seat. The father grabbed her and yelled for them to stop the lift, but the lift did not stop. The daughter fell from 30 feet into hard packed snow and sustained a shattered C7 vertebrae, bruised heart, lacerated liver, and injured her lungs. The ski resort is trying to use the legality of the lift ticket, which states that they are not responsible for any injuries, but the family will be allowed to sue for her injuries. We have talked about liability waivers many times now and most seem to be iron clad, what makes this case different?
David: Some of the legislature in Colorado carves out protections for ski resorts and operators, since skiing is such a big part of the state. The intent is to make sure that people can go skiing and that the resort operators and the people who are running the mountain are protected. However, with a ski lift there is a certain level of expectation that the lift is being well maintained and that its operators are trained on how to safely conduct the lift.
Caller: Coming from a national story, a man feels betrayed by Apple and is suing them for 6 million dollars because the texts he was deleting on his phone with escorts were saved to his home computer via iCloud, leading to his wife discovering the messages and filing for divorce.
David: I do not particularly like this type of claim. However, I imagine Apple does a fairly good job of explaining how their technology works, as well as most likely having an explanation of the iCloud and how it processes things listed in their terms of agreement. At the end of the day ignorance of the law is not a strong defense.
Caller: Rhonda signed the lease for her home in December 2023 but did not move until mid-December because the toilets were not working. They still do not have working toilets. The landlord will not respond to their messages or the plumber’s and the plumber says that there is a broken pipe. They have two kids in a smelly home with toilets that do not work, what can they do?
David: I find it hard to imagine that they have been living there for six months and the toilets have never actually flushed, so I assume that the problem may be that the toilets back up periodically, do not fully flush, have created smells, etc. There is a statute in Colorado that says that a home without working plumbing becomes an uninhabitable premise. There are guidelines that you can follow to get out of your lease if you follow certain steps.
Caller: Where do I start without compromising the contract on my side of it?
David: Under Colorado revised statute 38-12-507, tenant’s remedies, subsection one it states that if there is a breach of the warranty of habitability as set forth in section 38-12-5032, subsection A, upon no less than ten and no more than 30 days written notice to the landlord specifying the condition alleged to breach the warranty of habitability and giving the landlord five business days from the receipt of the written notice to remedy the breach. A tenant may terminate the rental agreement by surrendering possession of the dwelling unit. This means that you can give the landlord a written notice that you cannot live there, detailing the reasons why and they have a set amount of time to remedy that breach.
Caller: Jared has been living in his rental for nine years. They are moving out and the landlord is trying to make them pay for new carpet, paint, refinishing the hardwood floors, and replace the deck. All of these should be normal wear and tear for living in a home for nine years. What are their rights as a tenant and what should the landlord be responsible to pay for?
David: There are two different categories when you’re looking at the deterioration in the condition of a property. One of them would be what they call normal wear and tear, and the other one is damage. The tenant is responsible for the damage done to the property.
Caller: Who would be the judge then, in regard to determining what is natural wear and tear and what is actual damage?
David: That is a good question and it’s not one I’ve ever been presented with, so I want to be careful with how I answer that. I think the landlord needs to come in and assess the property and have a reasonable conversation. The landlord is most likely going to do one of two things. They are going to keep the security deposit, saying that they determined unilaterally that there is damage that is not normal wear and tear. If they want the tenant to then pay additional money to then correct these things that Jared had mentioned, they are going need somebody to come out and evaluate it as a mediator.
Caller: Zach is trying to do the right thing, October of last year, he requested to modify his child support payment. He was paying for two kids; one is 24 and recently married and the other is 19 and has moved out of the house. They are technically both emancipated now. He was paying for shared 50/50 parenting, even though the youngest lived with him full time since January 2021. They went to court and the judge had sided with him. They wanted to make an order to have his ex-wife start paying him what he was paying her, plus a newly dotted $10 a month added to the stipend. He said that he did not want anything, he just wanted to wash everything clear and start over. But now it has spiraled, and his wages are being garnished. They did not go off of the final judges’ orders and they are pulling from other stuff from a different case in November. It is deep now and Zach needs help.
David: Zach there are a couple of ways to do this. As a disclaimer this is not my specialty and I am sure there are lawyers out there who do this day in and day out and can probably answer this in 30 seconds, but I’ll tell you what my impression is. You have got a couple of different avenues. One of them is obviously trying to work with the family support registry office, to get this resolved. They are the ones who are trying to enforce the order and are garnishing your wages. Explain your position to them and see if they can unwind the situation. Highlight the relevant parts of the court transcript where these things were discussed and where the judge made findings on the record that may not have made it into the actual order, so that they can see the judge’s intent. Hopefully then the FSR will resolve what they have been doing. If that does not work, you should get in front of the judge again. File a motion to put your case back on the docket, explain the situation to the judge and provide the attachments from the FSR. For example, what they are doing to garnish the wages, the driver’s license suspension, etc. Since the judge seems to be very reasonable, I am sure they will look at everything and say that there was an error in the way that their order was being interpreted and try to unwind these things.
